Judge: Michael E. Whitaker, Case: 22SMCV01733, Date: 2023-10-23 Tentative Ruling

Case Number: 22SMCV01733    Hearing Date: December 15, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiff Tent 123 (“Plaintiff”) filed an unlawful detainer complaint in this action on October 4, 2022.  Defendant Fethi Sahman (“Defendant”) vacated the premises in December 2022.  As such, possession of the subject property is not at issue.  Plaintiff now moves for leave to file a first amended complaint for damages only.  Defendant has not opposed the motion for leave to amend. 

LEGAL STANDARD

Amendments to Pleadings: General Provisions

            Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324: Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.”

DISCUSSION

            Here, Plaintiff has attached as Exhibit A to the motion a copy of the propose amended complaint, and also provided the declaration of Chris Zaki, which indicates the following:

5. Pursuant to Shaman’s Notice of Surrender filed on November 28, 2022, this Court held that possession was no longer at issue and this action thereafter converted to an ordinary civil action.

[…]

8. On March 3, 2023, Tent 123, filed its initial First Amended Complaint (the “initial FAC”) as to Shaman, erroneously believing that it was permitted to do so.

9. On August 3, 2023, the Clerk of the Court determined that Tent 123’s initial FAC was incorrectly accepted for filing on March 3, 2023. As a result, the initial FAC was revised to being “received” but not “filed.”

10. On or about August 17, 2023, Tent 123 received this Court’s Notice of Rejection regarding Tent 123’s FAC.

11. On or about August 18, 2023, Tent 123 filed a Request for Dismissal with the intent of refiling as a civil action alleging breach of contract however Tent 123’s Request for Dismissal was denied due to the existence of Shaman’s Cross-Complaint.

12. On or about September 28, 2023, Tent 123 presented a Motion for Leave to Amend the operative Complaint to include both those damages Tent 123 was not able to recover in a limited summary unlawful detainer matter as well as to allege additional damages that Tent 123 was not then aware of at the time the original complaint was filed. Tent 123’s Motion for Leave to Amend was denied without prejudice.

13. This amendment to Tent 123’s Complaint (the “proposed FAC”) is necessary and proper in order to fully address the entirety of the scope of Tent 123’s damages that have arisen since the filing of the original complaint, to include newly-discovered causes of action and damages, and to prevent multiplicity of actions, thereby reducing the potential overall burden that multiple actions will cause to this Court and the parties herein. Leave to amend is further necessary by the virtue of Shaman having filed an Answer to the original complaint.

14. The proposed FAC includes additional monetary damages not otherwise recoverable in an unlawful detainer based upon Cal. Code Civ. Proc., §1161(2). In addition to including a cause of action for breach of contract, Tent 123 seeks the entire balance of Shaman’s unpaid rent, commencing with Shaman’s initial default in November 2020 and through to Shaman’s vacating the Premises, notwithstanding the cost of remediating the significant property damage Shaman caused which was then unknown as of the filing of the original complaint in an amount no less than $110,350.00 and subject to proof at trial.

15. Had Tent 123 been made aware that the initial FAC was not accepted and filed by the Clerk, Tent 123 would have applied to this Court in or around March 2023 for leave to amend the operative complaint.

16. While there is a Trial Setting Conference pending on December 1, 2023, a trial date in this matter has yet to be set. Shaman has yet to conduct any discovery in this action to date. Having the entirety of the damages addressed in a single action, as opposed to two, will streamline this litigation and conserve the parties’ and this Court’s valuable resources. Shaman will suffer no prejudice by permitting Tent 123 to amend the operative complaint to include all relevant damages Tent 123 has incurred.

(Zaki Decl. ¶¶ 5, 8-15.) 

            Thus, the Court finds that the Motion satisfies both the procedural and substantive requirements of Rule 3.1324. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s unopposed motion for leave to amend the complaint.  Plaintiff shall file and serve the proposed first amended complaint on or before January 12, 2024.

            Further, the Court orders Plaintiff to provide notice of the Court’s ruling and file a proof of service of such.

DATED:  December 15, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court